Explanatory Notes

Freedom of Information (Scotland) Act 2002

2002 asp 13

28 May 2002

The Act – an Overview

3.The Act:

4.The Act is in seven Parts.

Part 1 – Access to information held by Scottish public authorities

5.This Part:

Part 2 – Exempt information

6.This Part sets out the circumstances in which information is “exempt information” for the purposes of the Act. Some of the exemptions apply to a class of information; others rely on the application of a test of substantial prejudice or other consequences of disclosure.

Part 3 – The Scottish Information Commissioner

7.This Part creates the office of “Scottish Information Commissioner” (the Commissioner). It places a duty on the Commissioner to promote good practice and Scottish public authorities’ compliance with the Act, their publication schemes and codes of practice. The Commissioner is also obliged, where he or she considers it expedient, to disseminate information to the public about the operation of the freedom of information (FOI) regime. The Commissioner is permitted to charge fees for services provided. This Part also enables the Commissioner to make “practice recommendations” specifying what a Scottish public authority should do to comply with the codes of practice, and requires the Commissioner to lay annual reports before the Scottish Parliament.

Part 4 – Enforcement

8.This Part sets out arrangements for an applicant, who is not satisfied with the response of a Scottish public authority to a request for information, to apply to the Commissioner for a decision on whether the authority has acted in accordance with the provisions of the Act. Subject to certain conditions, the Commissioner is under a duty to reach a decision. The Commissioner is also given powers to mediate between parties to an appeal.

9.This Part also describes the investigative and enforcement powers of the Commissioner. The Commissioner’s powers of entry and inspection are set out in schedule 3. This Part confirms that the Act does not give rise to any right of compensation from a Scottish public authority for breach of statutory duty. However, judicial review or appeal to the Court of Session on a point of law may still be available. This Part also provides for the circumstances in which a certificate may be issued by the First Minister, after consulting the other Scottish Ministers, in respect of a decision notice or enforcement notice issued by the Commissioner regarding the disclosure of exempt information. The effect of such a certificate is that the Scottish Administration need not comply with the Commissioner’s notice.

Part 5 – Historical records

10.This Part defines certain exemptions which will cease to apply when information reaches a specified age. Records would cease to be exempt after certain specified periods, with the majority of the exemptions falling away after 30 years. For the purposes of this Part, records that are over 30 years old are described as “historical records”. A smaller number of exemptions fall away after 60 and 100 years, while the remainder remain to be considered in perpetuity. This Part also describes how the Scottish Ministers may amend the time periods.

Part 6 – Codes of practice

11.This Part requires the Scottish Ministers to issue a code of practice providing guidance to Scottish public authorities on how they should fulfil their functions under the Act, including the practices which authorities should follow when dealing with requests for information. It also requires the Scottish Ministers to issue a code of practice providing guidance to Scottish public authorities on the keeping, management and destruction of their records.

Part 7 – Miscellaneous and supplemental

12.This Part:

13.Part 7 also sets out the commencement provisions for the Act. During the period between Royal Assent and the date all the provisions have come into effect, the Scottish Ministers must make annual reports to the Parliament on progress towards full commencement.